Employment Law Update 2018-19

Hello and welcome to this seven arm, which we're going to look at the interesting case law from 2018. My name is Kathy Daniels, associating an associate professor at Aston Business School in Birmingham. What I've done is I've selected a number of cases from 2018. There are particularly interesting. So some which were headline grabbers and some which might not have grabbed the headlines but still say some really important points say, Let's start off with one that definitely wasa headline grabber on This is relating to employment status, and I should have picked up two cases here. Model with them together. The first is uber on Dhere. The question with whether uber drivers So these are individuals that are driving cars that you book through uber, whether they were employees, workers or self employed. Uber was saying that they were self employed and what uber worlds was simply an intermediary by which they could relate to customers on get bookings. Where is the uber? Drivers were arguing that there actually employees now. This case had been to the employment tribunal, and the Employment Appeal Tribunal on was now before the Court of Appeal on their happen in number of cases relating Teoh employment status in the so called gig economy. But uber is particularly important on Pimlico plumbers, which is the next one that we're going to come to because they're actually cases that have gone up to the appeal Court's Onda ruling from the Court of Appeal, as we have here, is binding on other courts in a way that a ruling from the employment tribunal is not. So to understand the case, we've got to understand the way in which the uber drivers work. Now the uber drivers are log on to the uber app on. If you're not familiar with uber, the whole point is that you download the app both as a customer and actually is a driver. Andi. Then if you want a vehicle, a taxi drive, then you go on to the APP you put in the journey that you want on your connected with the driver, who then turns up and drive. You aware of it is that you want to get now. The uber drivers don't have Teoh have set hours. Quite simply, they log on to the app Onda wins, say once they're available for work on when they have logged onto the app they are expected to take. Any journeys are offered to them on if they reject more than three journeys in a row there compulsorily logged out of the app for her minutes. There is an element of control from uber in that the price for the journey is fixed by uber on. Of course, it's not like if you like a traditional taxi journey where you get out of the taxi on, then you pay the driver. You don't do that with. Uber is well done by credit card on their four uber actually pay the drivers, and they do so on a weekly basis based on the amount of work that they've done. The other important thing tonight about uber is that the individuals have to do the work personally. As you're probably aware with any private car hire business, these who are driving have to be cleared, have a criminal records check because, of course, we can't have people going round driving cars and taking passengers who might be a threat to their safety. And so, if you aren't accepted, is an uber driver, you will have security clearance and you can't then say to somebody else, Hey, I don't feel like driving today. When you take my vehicle where you take some of the journeys that come my way you simply can't do that now to say Uber Heard argued that they were doing nothing more than basically being a a nap for channeling the bookings. But the uber drivers said, Well, actually, we are under the control of uber. The wouldn't Sui are logged on. We're supposed to take the journeys worked. We have to charge their prices on the APP actually comes up with the route that the drivers are supposed to take a swell A meals, they said. Well, we're actually required to do the work personally, Andi. Therefore, surely we must be employees Now here it's useful to remember the employment status tests that the courts apply to determine employment status, and we have the mutual obligations test on. We have the multiple test. The mutual obligations test says to be an employee, that must be an obligation on the employer to provide work on an obligation on the individual to do work. Now, as soon as we think about this, we can see a problem with the uber drivers convincing us that they are employees because uber is not under any obligation to offer a set amount of hours or a certain number of journeys to the drivers. However, if we look at the multiple test, we can definitely say well, they are under the control of the employer. They do have to provide work personally, but then actually there are some terms that are inconsistent with employment and most notably, that they choose when they're available toe work. I think by looking at the mutual obligations and the multiple test, it's fairly straightforward to see why we would reach the conclusion that there no employees but they are obliged to do work personally. And that is a feature of a worker on the Court of Appeal have concluded that they agree with the conclusions of the Employment Tribunal on the Employment Appeal Tribunal on the uber drivers are actually workers now. This is important because workers have rights under the working time Regulations 1998 Onda also and entitled to the national minimum wage and the national living wage on therefore that as a serious cost implication for uber uber have been given right to appeal to the Supreme Court, which leads us nicely to Pimlico Plumbers versus Smith because this is a ruling from the Supreme Court, and again, it's about employment status. Here we have an individual who was working as a plumber. He had where the Pimlico Plumbers uniform. He had two years, their preferred suppliers. He had to drive a van with their logo. He could choose when he was available for work, but once he had said when he'd be available, he did have to work. Then he couldn't get anybody to do his work for him. He could contact another plumber that was approved by Pimlico plumbers and asked him to do his shift. But that's little more than what employees might do in in swapping shifts amongst each other. He could only use an approved Pimlico plumber to do work for him, and he has also been successful in arguing that he's a worker. His particular issue arose because he had a heart tight. He was unable to work for a period of time on. Then, when he was well enough to work again, Pimlico plumbers said they didn't want him on. He wants to claim disability discrimination on because of the claim that he wants to make, has got to be able to show that he's either a worker or an employee. And here again, the emphasis is on the requirement provide were personally on. He is a worker on a say This is a ruling from the Supreme Court say that is a very important ruling to know on if you do have any concerns about employment status, is that me well worth going and reading the full bird ruling here say they are probably some of the big topic, or or it is the big topic of 2018 employment status. But there's also plenty of other interesting cases. So let's have a look at some of days. SE Talent Engineering LTD. Versus Smith. Ask the question. Is it fair to proceed with the disciplinary situation if a representative is unavailable on what happened in this case? Is that the employer hood? I'll see employees to attend a disciplinary meeting. First of all, the employees had been unable to do so because employees was unwell on sick leave. Then, with the rearranged date that clashed with annual leave that the employees had got booked on. Then it was rearranged again, and this time the representative wasn't available on the employees said, Well, sorry, we're going ahead regardless, Onda the employees are key that this was unfair. The employees actually went on to be dismissed and argues that this was an unfair dismissal on the employee was successful in the argument in accordance with the A cast code of practice, disciplinary and grievance procedures. If a representative is unavailable, the employer should rearrange the meeting to a date when the representative is available. If the employer did that and then the representative didn't turn up that maybe it would be acceptable to go ahead. But just to go at it, to say right we're going ahead on the first occasion when the representative wasn't available was no fair. Now I said at the start that the employment status cases grab the headlines in 2018 on. That's certainly true of the HR press, but there was a case that wasn't specifically related to employment that grabbed the more popular media headlines, and it's really worth is having a look up because the logic of the ruling could still be applied to unemployment status, Kurtzer to unemployment situation on This is a case of leave vs Ashes Baking Company LTD. The case about the cake and you may recall what had happened here on individual who was homosexual, had approached ashes baking company on asked him to bake a cake with a slogan on it that supported gay marriage. The Bakers Ashes baking company, the Bakers, their own. The company Christians on part of their Christian belief is that gay marriage is wrong on. Therefore, they refused to bake the cake on a lake case of sexual orientation discrimination. Direct discrimination was brought against them on this case ended up in the Supreme Court now, Originally, the lower courts had concluded that this WAAS discrimination, but the Supreme Court disagreed. The Supreme Court said, We've got to go back to what has actually happened here. What the Bakers have done is refused to bake a cake with a slogan supporting gay marriage. They haven't discriminated against legally. The person that asked for this cake, they haven't treated him less favorably because of his sexual orientation. It could have been anybody who asked for this cake to be baked of any sexual orientation, what they were doing is saying we don't agree to bake the cake. No, we don't agree with your sexual orientation on. Therefore, we are treating you less favorably. It's a thought it to be direct discrimination. The individual has got to be treated less favourably because of their sexual orientation. On that is know what happened in this case on, therefore, the claim of discrimination failed. Now that is an important one to get right because they say it. Waas very much in the popular press on the popular press doesn't always quite report cases as clearly as they could. So it's important to note that the final conclusion waas It wasn't discrimination because it wasn't treating the individual less favorably because of their sexual orientation on. That leads us nicely into another case looking a discrimination. There are nine protected characteristics in the Equality Act 2010 and the protected characteristics or grounds on which it is not lawful to treat somebody unfavourably to discriminate against them. On one of these protected characteristics is religion or belief. Now religion fairly straightforward. I don't think we're going to fall out over a statement that Christianity, Judaism, Sikhism, our religions, but beliefs have caused more difficulty in a definition on in this particular case, the employees had been asked to sign a contract that included a clause saying that any a co p relate that they, uh, entered into as part of their work was owned by the employer. And that's a fairly straightforward sort of clause for an employer to asking employees to sign. Up to now, this particular employee, in their own personal time, was writing film scripts on a novel. Andi was concerned that if they signed this clause, that might mean that the copyright for this work was going to be assigned to their employer. So they refused to sign the clause. Even when the employer said, Look, we will put a particular note in that specifically excludes anything you do in your own time that isn't related toe work. Onda The individuals being told where you can't be an employee if you don't sign this clause on, they said, Well, that's discrimination on the grounds of my belief on my belief is the statute e human or model right toe own a copyright on moral rights of their own creative work and output. So what? They were basically saying is they have a belief in the importance, if you like off copyright laws. Andi therefore treating mass favorably because they wouldn't sign this document was a belief discrimination. Now they were unsuccessful in arguing this. Firstly, they're unsuccessful in arguing that this could be a belief as defined in the equality at 2010. It has to be a philosophical belief that is worthy of respect in a democratic society that has a really impact on the way that somebody lives their life. So we've seen things, for example, like vegetarianism being deemed to be a belief. But also an important point is that to be successful in a claim that this is religion or Burt belief, discrimination, there's got to be a group disadvantage. There's gotta be a group of people that have this belief on the individual wasn't able to show that this was more than than some some belief, which I use with inverted commas, if you like, but a belief that they hold individually on, therefore, on that basis, their success. That claim was unsuccessful. Now an employer is vicariously liable for anything that the employee does in the course of their employment. Now that term in the course of employment has been the subject of a few cases over recent years on There have been two of particular note both towards the end of 2018 actually on what these two cases show is that the courts are taking quite a broad view of what the definition off in the course of employment might actually mean. On the first case is a very sad case, actually, of bellman vs Northampton Recruitment Limited the organization was having their Christmas party Christmas party came to an end on the number of employees went on Teoh, if you like an after party and the employer paid for taxes for the individuals to go on Teoh, another venue where where they were drinking on the employer was paying for most of the drinks. Andi, as people chatted, a bit of an argument started up about some terms and conditions of employment oven individual. Andi, the managing director who was there, was giving his view and indeed gathered employees round to say what he thought on. One employee argued with him on, Did it so happened that it was an employee that had been a friend of the managing director from from when they were youngsters. Not that that is particularly relevant. But I think it adds up Teoh explaining why I said it was rather a sad case on, and there was an exchange of words and the managing director actually punched the employee. The employee fell backwards, yet ahead ended up brain damaged and is unable. Toe work on the employees had brought a claim for damages against the employer, and the employer has argued that that was no. In the course of employment. Obviously wasn't in the workplace, it wasn't even at the Christmas party. And it's largely been established that any specific work party like a Christmas party is an extension of work. You're only there because of work on. Therefore, it seems, in the course of employment what the employer argued was this was one step removed from the at and therefore three Employer was no liable on. The employee has been unsuccessful in that all cumin. The only reason that the individuals were there was because of their common work. The discussion that led to the punch being thrown waas about work. The employer had paid for the taxes to get to this venue and was paying for drinks. It was closely linked to employment on. Therefore, the events occurred in the course of employment. Another case that that call some concern amongst employees was that very claimants versus WM. Morrison Supermarkets PLC on what happened here was a manager were subject to disciplinary proceedings. He was particularly unhappy about that on DSO. He had access to the I T systems and he went on and downloaded the personal details of thousands of employees, including their bank. Details on posted them on the company website on also sent him off to a number of national newspapers. A soon as Morrison's became aware that this had happened, they took the information down on the national newspapers didn't publish the information either, but that information was out there in the public domain for a period of time, even though it was a relatively short period of time. Um, what it meant waas that the employees concerned had to ggo in change passwords and bank details, etcetera on a number of employees brought a claim against the employer on what the employer argued Waas that yet the employees had access to the systems because he was the manager of the supermarket. But doing that something which was actually a criminal act. Andi, the employees concerned, was imprisoned. If that's his still in prison, fully for the at the nature of that is some far removed. From what? What Morrison's could ever say, where his duties that you couldn't argue that it was in the course of employment on Morrisons have been unsuccessful in their argument. The only reason that the individual had access to this information waas that he waas an employee of Morrison's on therefore yes, it was in the course of employment on these two cases, although they may seem very hard for employers, actually are not that surprising because they do really follow the approach that the courts have been taken to precarious liability in defining the course for employment quite broadly now from cases about leaving companies that quite interesting. I think the first is East Camp Hospitals University, NHS Foundation, Trust versus Levi. Now this employee worked in a particular department in the hospital, wasn't rated particularly well applied for another job within the same hospital. Uh, I got the job, I told her employer in writing, so told her line manager in writing that she was resigning from the position that she had to go and work in the new role in the hospital. The new department then found out that she wasn't ready to particularly highly, and they said, Well, actually with were withdrawing the offer. And so the employee said, I'm really upset about that. But don't worry. I still got my job. Andi, the line managers said. They haven't cause you've resigned now. The actual resignation letter wasn't very specific. It didn't say whether the individual was leaving, resigning from the hospital or resigning from the department, the hospital argued. Well, it was a resignation letter and therefore we are simply accepting the resignation. But she argued that she had been unfairly dismissed by the hospital taking that view on, she was successful in her argument to rely on a resignation letter When an employee is actually resigning. You've got to be able to show that the resignation letter was clear on um ambiguous on the hospital was not able to show that in this situation we then have the case of Jones's, says Fly Light Air Sports Limited, and this concerned an employee. He was a flight instructor had an argument with his employer on the employer, said something along lines of I don't want you flying in my aircraft. Pack your bags and leave. So Jones did. James with thing called him to a disciplinary meeting when she didn't turn up to um, I'm saying, Well, I've already been dismissed. So what is the point on? Also say, And it's an unfair dismissal because a fair procedure was not followed. Now what the employer was saying was what we tried to follow a fair procedure. We invited you to a disciplinary meeting. You didn't turn up, Jones said, where you had already dismissed me by then, and Jones was successful in the argument. Those words of Pack Your bags and leave were sufficient to be a dismissal, and this is a good reminder to employers that sometimes tempers do fly in on people. Do you get a little bit cross but actually is important to pull back and not say words that could be interpreted as a dismissal? We then have an interesting question in the case off Newcastle upon Time NHS Foundation, Trust versus Heywood on. That is when I actually is the effective date of termination. What happened here is that the been Cem consultation about redundancy with Haywood Andi She'd been gone on holiday on when she went on holiday. The potential redundancy have no actually been confirmed on while she was on holiday. A letter was written to her confirming, but she wants to be made redundant. Andi at the same time, the E mail was also sent actually to a husband's email address, confirming the same thing. But she was on holiday on. She didn't access either, until the day that she got back from holiday on. The actual effective date of termination did matter, because if it was the later date, I hear the date that she read the letter on the email, then her. But she'd had a birthday, and it meant it. It clicked into more financial compensation for the redundancy on the ruling Waas that the effective date of termination is the date that the employee is made aware that that they their employment is being terminated on. Therefore, it's a date that the employee reads the letter, read C e mail, or has the actual conversation with the employer, not the date that the letter or the email is sent. If that isn't earlier date now an interesting case from Ireland and I just put it in because I think it's a timely reminder to employers that we need to think about email overload. The cases keep act versus grain. The horror on Day three employees was regularly working 60 hours a week, and this was primarily because she was answering emails before eight o'clock in the morning on up to midnight. A nine on the main reason that she was doing this was her job required her to liaise with individuals, were working in different time zones on. Therefore, she was corresponding with them when they were at work. And she successfully brought on argument that Theo, the working time legislation in Ireland was being breached on DSHEA has been awarded 7.5 1000 euros in compensation. Now, of course, the Lorries is different in Ireland, but the working time directive is is still relevant to both Ireland on the UK on I just bring it in because I think there are so many employees today who are overloaded with emails on who quite regularly, not because of different time zones But first thing they do in the morning is have a look a their smartphone or the tablet on. Maybe answer a few emails, maybe even before they have breakfast. Maybe before he get out of bed on, then again in the evening after they have had an evening meal and they settled down to maybe to relax, get the phone or the tablet back out and answer a few more e mails. Andi is a timely reminder that there is, ah limit in the working time regulations. 1998 of 48 hours on the working week. Well, their employees can sign. Opt out that, but also that there are rest breaks of 11 hours in every 24 hours. On the rest break of a least 20 minutes after six hours work on arrest of either one day in every seven days or 48 hours in every 14 days. And I just wonder how any employees are checking email such that they are actually getting the rest breaks that they should have. And I just wonder when the case in Ireland will be a case in the UK and finally, three family cases that are worth noting the 1st 1 is Capital Customer Management LTD. Versus Ali. On This is an employee who took shared parental leave and in his organization in please that took maternity leave were entitled to enhance pay. But he was told that he would just get the statutory amount when he took share parental leave, and he argued that this was sex discrimination. Now he wants successful in the employment tribunal, but the Employment Appeal Tribunal overturned that ruling on what they said is that maternity leave is for the purposes of recovering from the birth of a child. Where is shared parental leave is just to care for the child because the two leaves awful different reason. Then you can't compare the two rates of pay and therefore the sex discrimination claim failed in war was versus Scriven Limited. This is an interesting case where an employee had undergone some fairly expensive training on had a claw back that if she left within a certain period of time, she had to pay a percentage of the cost of the training back. No unusual. But when she went on maternity leave, the employer paused the accrual of service. So this man that at the end of her maternity leave, she happened to create the same amount of services who would effect if the continuity had been continuing to accrue on. Therefore, when she decided to leave, she had to pay more money back on this walls found to be discrimination on the grounds of maternity. An employee on maternity leave is still an employee and therefore paws claws should not been used. And finally, the really easy car credits Limited versus Thompson. In this case, an employee was underperforming during a probationary period and it was decided to dismiss her. Before he was actually told that she was going to be dismissed. She told her employer that she was pregnant. She argued this was discrimination on the grounds of pregnancy and maternity when she was finally told that she would be dismissed for the employer said, When we made the decision before we knew you were pregnant and therefore it couldn't be discrimination. The Employment Tribune Appeal Tribunal has directed this back to the tribunal to say right, what exactly waas the reason for dismissal. When was the decision made Wasit actually made before they need that she was pregnant and It's just a really good reminder that if we do have an employee is pregnant, then it's really important. If they are being dismissed to be able to share a reason that it totally unrelated to that pregnancy, I hope they have found the session useful.